Probate

Clients in need of a probate attorney have, more often than not, just lost a loved one and are dealing with the emotional issues of the loss. The legal issues appear to be an intrusion into the privacy of the family sanctuary. The probate attorneys at O’Brien, Barton & Hopkins are aware of the special needs of the surviving spouse and heirs of the decedent. We try to make the process as painless as possible. Clients are encouraged to ask any questions they may have. All of our clients’ questions are answered with dignity and respect.

Probate is the process that transfers legal title of the property of the deceased person (“decedent”) to his or her beneficiaries. The term “probate” refers to the confirmation of a valid will and proving whom one’s legal heirs are if there is no will. Probate is the process used to determine who gets the decedent’s property.

Generally it is necessary to go through probate, before the deceased’s property can be legally distributed. For example, if the decedent owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so clear title could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the decedent’s property before the will is admitted to probate and/or someone is lawfully appointed to act for the estate.

In the case of smaller estates, i.e., estates with assets less than $100,000.00, a less formal affidavit of successor procedure may be utilized.

Even if a person dies with a will (which is known as dying “testate”), a court generally has to have an opportunity to allow others to object to the will, and if there are any objections, to determine if the will is valid, because it is always possible that:

there was a later will (which, if valid, would replace the older will), or

the will was made at a time the deceased was not mentally competent to make a will, or

the will was the result of fraud, mistake or “undue influence” or

the will was not properly “executed”, or

the so-called will is actually a forgery, or

for some other reason (such as a pre-existing contract) the will is not fully valid, or

there are other claims against the deceased’s estate that impact what the beneficiaries under the will would receive.